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Fifth Circuit Settles on Three Day Presumption of Receiving Right to Sue Notice
Practical Law Legal Update 5-609-5909 (Approx. 5 pages)
Fifth Circuit Settles on Three Day Presumption of Receiving Right to Sue Notice
by Practical Law Labor & Employment
| Published on 22 Apr 2015 • USA (National/Federal) |
In Jenkins v. City of San Antonio Fire Department, the US Court of Appeals for the Fifth Circuit held that when a party's receipt of a right to sue notice sent by the Equal Employment Opportunity Commission (EEOC) is unknown or in doubt, courts will presume that the notice was received three days after it was mailed. Applying the three-day presumption, the Fifth Circuit found that a fire department employee's discrimination and retaliation claims were untimely and affirmed a grant of summary judgment to the employer.
On April 20, 2015, in Jenkins v. City of San Antonio Fire Department, the US Court of Appeals for the Fifth Circuit held that when a party's receipt of a right to sue notice sent by the EEOC is unknown or in doubt, courts will presume that the notice was received three days after it was mailed. Applying the three-day presumption, the Fifth Circuit found that a fire department employee's discrimination and retaliation claims were untimely and affirmed a grant of summary judgment to the employer. (No. 14-50483, (5th Cir. April 20, 2015).)
Background
Randy Jenkins worked for the San Antonio Fire Department in various managerial-level capacities. Jenkins filed two separate EEOC charges (one in 2011, and one in 2012) alleging discrimination based on race and age, and retaliation for filing the first EEOC charge. The EEOC issued Jenkins a right-to-sue notice on May 16, 2012 for Jenkins' 2011 EEOC charge. On August 20, 2012, 96 days after the date of the right-to-sue notice, Jenkins filed suit in district court, and later amended the suit with additional claims related to his 2012 EEOC charge.
A party has 90 days from the date of receipt of an EEOC right-to-sue notice to file suit (42 U.S.C. § 2000e-5(f)(1)). Jenkins was unsure when he received the EEOC's notice. The district court, applying a three-day presumption of receipt of the right-to-sue notice, found that Jenkins' claims based his 2011 charge were untimely and granted summary judgment to the fire department. Jenkins appealed and argued that a five-day presumption of receipt should apply. Since August 19th had been a Sunday, applying a five-day presumption of receipt would have given him until August 20th to file suit, making his suit timely.
Outcome
The Fifth Circuit:
- Held that, where the date an employee receives an EEOC right-to-sue notice is unknown or in doubt, courts in the Fifth Circuit should apply a presumption that the plaintiff received the notice three days after the notice date.
- Affirmed summary judgment for the fire department on plaintiff’s claims based on his 2011 EEOC charge, as the claims were filed 96 days after the right-to-sue notice. In order to be timely, Jenkins' suit should have been filed no later than 93 days after the right-to-sue notice.
- Affirmed summary judgment on Jenkins' remaining claims because he failed to state a prima facie case of discrimination or retaliation.
The Fifth Circuit noted that:
- It had not consistently used the same presumption in prior cases (Taylor v. Books a Million, Inc., 296 F.3d 376 (5th Cir. 2002); Morgan v. Potter, 489 F.3d 195 (5th Cir. 2007); Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 411 (5th Cir. 2003)).
- The majority of circuits apply a three-day presumption of receipt (Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119 (9th Cir. 2007); Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir. 2005); Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236 (3d Cir. 1999); Nguyen v. Inova Alexandria Hosp., (4th Cir. 1999); Smith–Haynie v. District of Columbia, 155 F.3d 575 (D.C. Cir. 1998); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522 (2d Cir. 1996)).
- Only the Sixth and Tenth Circuits apply longer presumption-of-receipt periods (Lozano v. Ashcroft, 258 F.3d 1160 (10th Cir. 2001); Graham–Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552 (6th Cir. 2000)).
Practical Implications
The Fifth Circuit's decision in Jenkins clarifies that courts within the circuit will apply a three-day presumption of receipt of an EEOC right-to-sue notice. Employers should be aware of the presumption, as it could provide a basis for employers to defeat discrimination and retaliation claims brought against them by employees.